Before : MR JUSTICE OUSELEY Between : - and - SECRETARY OF STATE FOR THE HOME DEPARTMENT

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1 Neutral Citation Number:[2014] EWHC 2245 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No: CO/6966/2013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 09/07/2014 Before : MR JUSTICE OUSELEY Between : DETENTION ACTION - and - SECRETARY OF STATE FOR THE HOME DEPARTMENT EQUALITY HUMAN RIGHTS COMMISSION Claimant Defendant Intervener Ms N Lieven QC and Ms C Kilroy (instructed by Sonal Ghelani, Islington Law Centre) for the Claimant Miss C McGahey (instructed by Treasury Solicitor) for the Defendant Ms S Harrison QC and Ms M Brewer (instructed by Clare Collier, Equality Human Rights Commission) for the Intervener Hearing dates: 17 th, 18 th, and 20 th December Approved Judgment

2 MR JUSTICE OUSELEY : 1. Detention Action is an incorporated charity set up in 1993 to support individuals in immigration detention, and to campaign on issues relevant to immigration detention generally. In this action, it challenges the lawfulness of the policy and practice applied by the Secretary of State for the Home Department, SSHD, in the operation of what is known as the Detained Fast Track, DFT. This is the policy for the detention of some asylum seekers, while their asylum claims are determined first by the SSHD, and then while they appeal if the claim is refused. They are detained on the basis that their claim and any appeal can be determined quickly. In summary, Detention Action contends that the DFT system as now operated is so unfair as to be unlawful, and it is unlawful at both common law and as a breach of Article 5 (1)(f) ECHR. This is a general claim, and not one which relates directly to any specific detainee. There is no individual Claimant. 2. The Equality and Human Rights Commission, EHRC, intervened with permission both by written and oral submissions. Detention Action is not a victim for the purposes of s7 Human Rights Act 1998, but the EHRC may rely on any ECHR rights in any legal proceedings by virtue of s30(3) Equality Act It supported the submissions of Detention Action, and added submissions on Articles 3 and 5, and Articles 13 and 14, principally the latter, the protection against non-discrimination in the exercise of Convention rights. A possible failure to comply with the public sector equality duty in s149 of the Equality Act 2010 was fleetingly raised. That, in my judgment, has to be pursued, if pursued at all, in a formal claim. It did not add anything of substance to the Article 14 arguments here. 3. Ms McGahey for the SSHD submitted that although there might be individual occasions when the DFT was operated unlawfully, contrary to its terms, the Court should be very cautious before making any general findings that the system was unlawful, generalising from individual case histories and anecdotal evidence. 4. This claim is concerned with those whose claims are thought by the SSHD to be capable of quick determination and who are therefore detained for the purpose of processing the claim and any appeal swiftly; their numbers include some in respect of whom bail or temporary admission would probably be refused anyway on other grounds; that should in law and by policy, but may not always in practice, be stated on the form giving reasons for detention. 5. This claim is not concerned with those, sometimes still called asylum seekers, whose claims have failed, who have no further appeal rights or other rights to remain, and are detained pending removal. Nor is this case concerned with those who are detained, while their claim is considered, because of the risk that they would abscond or commit offences, or that they would fail to comply with conditions attached to their admission or liberty. I am not concerned either with those who are detained in the Detained Non-Suspensory Appeals, DNSA, part

3 of the DFT after the adverse decision is made, since the question of detention pending appeal cannot arise as they have no right of appeal in-country. The statutory provisions 6. I start with the statutory basis for the detention of asylum seekers. This is in paragraph 16 of Part 1 of Schedule 2 to the Immigration Act 1971, but this power is not peculiar to asylum seekers; it applies to those whom immigration officers may examine, by virtue of paragraph 2 of that Schedule, to see if they have or should be given or refused leave to enter. Paragraph 16 provides: (1) A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. (2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions. 7. That aspect of the statutory framework is set out more fully in paragraphs 8-9 of the speech of Lord Slynn in R (Saadi) v SSHD [2002] UKHL 41, [2002] 1WLR 3131, a case to which the parties made extensive reference as the primary decision on the lawfulness of the DFT as it then was operated. I note that, under paragraph 21 of Schedule 2 to the 1971 Act, a person liable to be detained can be granted temporary admission, and that an application for bail can be made by such a person seven days after arrival; paragraph 22 of Schedule There is no separate statutory provision which deals with the detention of those whose application for leave to enter or whose asylum claims have been refused but who are appealing against that adverse decision. The structure of Schedule 2, which governs detention, shows that paragraph 16 also covers detention pending appeal. Paragraph 29 of Part 2 to Schedule 2 to the 1971 Act deals with bail pending appeal. The Asylum and Immigration Tribunal (Fast Track Procedure) Rules SI 2005 No. 560 apply only to those who were in immigration detention under Schedule 2 when served with notice of the decisions being appealed and who have been continuously in detention since. 9. There is also a European Union aspect to the statutory framework. Article 18 of Council Directive 2005/85/EC, the Procedures Directive on minimum standards for granting refugee status, prohibits detention on the sole ground that a person is an applicant for asylum, and it requires that an applicant in detention must be able to have that detention speedily reviewed. Article 23 covers examination

4 procedures at first instance, here the SSHD decision. It permits an accelerated procedure, provided that the basic principles and guarantees in chapter II are adhered to. It does not require the exclusion from such a process of those with special needs or those whose claim is likely to be well-founded. Article 23 (3), expressed in general terms, is additional to the more specific but nonetheless still wide range of circumstances in which an accelerated procedure may also be provided. Ms Harrison QC is right that mere administrative convenience is not one of those bases, nor is there an express or implied assumption that all claims are fit for accelerated examination. Nonetheless, I see nothing either to suggest that the DFT in principle falls foul of any Directive provision, nor is that a point more than hinted at by Ms Harrison. It was not a point in the claim. Nor do the exclusions expressly list any of those categories which the EHRC says should be excluded from the DFT, any of which may involve the circumstances which explicitly do permit accelerated procedures to be applied. Article 39 does require the existence of an effective remedy before a Tribunal against an adverse decision. 10. The 2003 Council Directive 2003/9/EC, setting minimum standards for the reception of asylum applicants, the Reception Directive, defines detention in Article 2(k) as confinement within a particular place, where the applicant is deprived of his or her freedom of movement. 11. Article 7 is headed Residence and freedom of movement. It provides: 1.Asylum seekers may move freely within the territory of the host Member State. The assigned area shall not affect the inalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive. 2.Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application. 3.When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their normal law. 12. Article 14 provides for Modalities for material reception conditions. Article 14(8) provides for an exception to the general modalities, which cover different forms of housing, where provided in kind: Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when:

5 - an initial assessment of the specific needs of the applicant is required, - material reception conditions, as provided for in this Article, are not available in a certain geographical area, - housing capacities normally available are temporarily exhausted. - the asylum seeker is in detention or confined to border posts. These different conditions shall cover in any case basic needs. 13. It was the SSHD s contention, opposed by the EHRC, that Article 7 did not apply to detention as defined in Article 2(k), but applied instead to the not uncommon practice in some EU member states of confining applicants to specific localities larger than a detention or removal centre. Detention was used in the Directive for much narrower circumstances. In so far as significance attached to this point, I see a distinction between Article 7 and detention on the language of the Directive, and this case is concerned with detention. 14. Article 17 of the Reception Directive requires account to be taken of the specific situation of vulnerable persons such as pregnant women, and the victims of torture and sexual violence. 15. Council and Parliament Directive 2013/33/EU, the 2013 Reception Directive, must be brought into force domestically by July 2015, by Article 30, at which point 2003/9/EC will be repealed in those member states which, unlike the United Kingdom, have signed up to it. Articles 7 and 8 continue the distinction between residence in a specific place and detention, using the same definition of the latter as in the 2003 directive. Article 8 limits the use of detention: 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant;

6 (c) in order to decide, in the context of a procedure, on the applicant s right to enter the territory; The grounds for detention shall be laid down in national law. 16. Article 9 contains guarantees for detained applicants. Detention should last only so long as Article 8(3) was satisfied. Delays in administrative procedures do not justify continued detention. There should be a speedy review of the lawfulness of detention, with free legal representation. Article 10 deals with conditions of detention. Article 21 requires special consideration to be given to vulnerable persons, who include pregnant women, victims of human trafficking, torture victims, those with mental disorders, and those subjected to serious violence including rape and FGM. An assessment has to be made, within a reasonable period of time after the application for international protection is made, as to whether an applicant has special reception needs to be taken into account in the asylum procedure. It may or may not be that this will affect the lawfulness or lawful operation of the DFT, but it does not assist on any argument as to the scope of the currently applicable Directives. 17. Ms Harrison submitted that the EU Charter of Fundamental Rights, Article 47, developed the law further since, unlike the ECHR itself, it gave Article 6 ECHR equivalent due process guarantees to immigration and asylum decisions, which included equality of arms, and a reasonable opportunity to present the case under conditions which did not place the applicant at a substantial disadvantage vis a vis his opponent. This however, she accepted, was no more than the expression of common law principles. 18. Article 5 ECHR precludes deprivation of liberty save in accordance with a procedure prescribed by law and in specified circumstances, one of which, Article 5(1)(f), covers lawful detention to prevent a person effecting unauthorised entry into the country. Article 14 ECHR requires Convention rights to be secured without discrimination on grounds such as sex. Victims of human trafficking are recognised as a particular social group in the context of the Refugee Convention. Discrimination under Article 14 can involve treating like cases in a different fashion or different cases in a similar fashion, but whichever aspect is involved, such a difference or similarity requires justification. A difference based on a ground such as sex requires justification by particular weighty reasons. Article 14 covers the concepts of direct and indirect discrimination. 19. Ms Harrison also made reference obliquely to the power to detain under DFT criteria, rather than under general detention criteria, those whose entry was not unauthorised, but whose asylum claim is made while they have no continuing leave to be here. (There is no suggestion that the DFT is applied to those who apply for asylum while their leave is extant.) They are likely to be individuals who claim asylum as a result of enforcement activity. The delay in making a claim is relevant to the judgment as to the suitability of the claim for quick determination, but not necessarily since victims of trafficking are very likely to

7 come to light through enforcement action. The power to detain them is in paragraph 16 (2) of Schedule 2 to the 1971 Act. There may also be a justification for detention beyond the fact of entry into the DFT, since they may be offenders awaiting removal, multiple claim-makers, or present a risk of absconding. Otherwise, it was not suggested that the making of a claim as a result of enforcement action, warranted a distinction between them in entry to and passage through the DFT. And the fact that they make up the bulk of those in the DFT, 70 percent or so it appears, does not mean that the lawfulness of the operation of the DFT for the minority who are new arrivals should be assessed differently. The role of policies 20. These general statutory provisions are operated by the SSHD pursuant to various policies. These are powers for the executive to detain individuals, without the benefit of a Court order, or following a trial, conviction, and sentence but rather pursuant to a quite generally expressed statutory power. 21. The Supreme Court considered what was required for the exercise of such broad executive powers to be lawful in R(Lumba) v SSHD [2011] UKSC 12, [2012] 1 AC 245. The principles are not altered by the fact that that was a deportation case. 22. Lord Dyson said at paragraph 34: 34. The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements. 35. The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay [1985] AC 318, 338. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it. 36. Precisely the same is true of a detention policy. Notice is required so that the individual knows the criteria that are being applied and is able to challenge an adverse decision.

8 23. He cited principles enunciated by the ECtHR in Medvedyev v France (Application No 3394/03)(unreported) 29 March 2010 Grand Chamber paragraph 80: The Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of lawfulness set by the convention, a standard which required that all law be sufficiently precise to avoid all risk of arbitrariness, and to allow the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in the circumstances of the case, the consequence which a given action may entail. 24. The ECtHR has repeatedly stated that the law in this respect had to be accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness. Ms Harrison QC placed emphasis on those last words. To my mind, however, avoidance of all risk of arbitrariness, if given the scope she appeared to contend for, seems an impossible task in any system of law, whether in the drafting of legislation or policy or in judicial decision-making over a large number of cases with similarities between them. Arbitrariness does not include reasonable but differing judgments, or the legitimate and necessary drawing of lines by time and circumstance, which can all have an element of the arbitrary, at least to some eyes, about them. It cannot require more than the common place notion of avoiding a real risk of a breach of an ECHR right, used as the test in removal cases. A broad grant of executive discretion, however, does not satisfy those requirements; it needs to be sufficiently circumscribed and subject to adequate legal safeguards against abuse; see paragraphs 32 and 33 of Lumba, Lord Dyson citing Gillan and Quinton v United Kingdom (2010) 50 EHRR 1105, on stop and search powers. The case law on the evolving DFT 25. The lawfulness of the DFT in its earliest form was considered by the House of Lords in R(Saadi and Others) v SSHD [2002] UKHL 41, [2002] 1WLR 3131, and by the ECtHR, in Saadi v UK (2008) 47 EHRR 17; but, emphasised the Claimant and the EHRC, its form was different from that which it has now assumed. The SSHD did not agree on the extent or significance of the changes. 26. In 2000, faced with a very large number of asylum applicants, the SSHD introduced a fast track procedure for considering some of their applications: certain applicants were detained for up to 10 days at Oakington Reception Centre to facilitate the expeditious determination of their asylum applications. They were not said to be abscond risks. The House of Lords was satisfied that detention for those purposes fell within the scope of both paragraph 16 of Schedule 2 to the 1971 Act and Article 5(1)(f) ECHR. So far as the former was

9 concerned, pending examination in paragraph 16 meant the period up to the time when the examination is concluded and a decision taken ; see paragraph 22 of Saadi. The lawful exercise of the power did not require the SSHD to show that the examination would not take place because the applicant would run away if not detained, nor that temporary admission was not appropriate. The period of detention had to be reasonable in all the circumstances. At paragraph 24, Lord Slynn said: 24. There is obviously force in the argument for the claimants that if there is no suggestion that they might run away then it cannot be strictly necessary to detain them as opposed to requiring them to comply with a fixed regime enabling detailed examination to take place. This, however, ignores the reality large numbers of applicants have to be considered intensively in a short period. If people failed to arrive on time or at all the programme would be disrupted and delays caused not only to the individual case but to dealing with the whole problem. If conditions in the centre were less acceptable than they are taken to be there might be more room for doubt but it seems to me that the need for speed justifies detention for a short period in acceptable physical conditions as being reasonably necessary. 25. This does not mean that the Secretary of State can detain without any limits so long as no examination has taken place or decision been arrived at. The Secretary of State must not act in an arbitrary manner. The immigration officer must act reasonably in fixing the time for examination and for arriving at a decision in the light of the objective of promoting speedy decision-making. 27. So far as Article 5(1)(f) was concerned, it was not necessary to show that the applicant was seeking to evade immigration control by his entry; nor was there a test of necessity for the detention in order to inquire into whether or not the asylum claim should be granted; paragraph 36. He expressed no concluded view on whether the removal limb of Article 5(1)(f) was engaged. 28. The issue thus became whether the detention was unlawful, as a disproportionate, response to the reasonable requirements of immigration control. Lord Slynn concluded: 45. In Chahal s case 23 EHRR 413, 466, para 118 the Court of Human Rights said that the lawfulness of detention had to be seen against the substantive and procedural rules of national law "but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness". I do not see that either the methods of selection of these cases (are they suitable for speedy

10 decision?) or the objective (speedy decision) or the way in which people are held for a short period (i.e. short in relation to the procedures to be gone through) and in reasonable physical conditions even if involving compulsory detention can be said to be arbitrary or disproportionate. The evidence of Mr Martin gives strong support to the view that it was appropriate, in the light of the Secretary of State's experience, for the Secretary of State to adopt the Oakington policy and that other alternative methods would practically not be effective. 46. The need for highly structured and tightly managed arrangements, which would be disrupted by late or nonattendance of the applicant for interview, is apparent. On the other side applicants not living at Oakington, but living where they chose, would inevitably suffer considerable inconvenience if they had to be available at short notice and continuously in order to answer questions. 47. It is regrettable that anyone should be deprived of his liberty other than pursuant to the order of a court but there are situations where such a course is justified. In a situation like the present with huge numbers and difficult decisions involved, with the risk of long delays to applicants seeking to come, a balancing exercise has to be performed. Getting a speedy decision is in the interests not only of the applicants but of those increasingly in the queue. Accepting as I do that the arrangements made at Oakington provide reasonable conditions, both for individuals and families and that the period taken is not in any sense excessive, I consider that the balance is in favour of recognising that detention under the Oakington procedure is proportionate and reasonable. Far from being arbitrary, it seems to me that the Secretary of State has done all that he could be expected to do to palliate the deprivation of liberty of the many applicants for asylum here. 29. The particular circumstances to which Lord Slynn referred are set out principally in paragraphs 14-18: 3 days to substantive interview, 2 further days to decision allowing time for further representations, on-site legal advice, a considerably more relaxed and spacious regime than at other detention centres, detention averaging 7-10 days, all to achieve 150 interviews a day, which required tight scheduling. The process was intended to deal quickly with the straight forward claim; Home Office policy was that the process did not include any case which does not appear to be one in which a quick decision can be reached any case which has complicating factors, or issues, which are unlikely to be resolved within the constraints of the Oakington process model unaccompanied minors any person who gives reason to believe that they might not be suitable for the relaxed Oakington regime, including those

11 who are considered likely to abscond. ; paragraph 15.The Home Office witness rejected the suggestion that the Oakington process involved the application of a rigid nationality criterion; nationality had a role to play along with other factors, including individual circumstances, telling either way for suitability for inclusion in the process. 30. The ECtHR judgment accepted the approach of the House of Lords to Article 5(1)(f): entry was unauthorised until authorised, and a person s detention till entry was authorised, was detention to prevent his effecting an unauthorised entry. However, detention was not justified if lesser measures would suffice to safeguard the public interest. A balance had to be struck between the two interests; the duration of detention would be relevant in striking the balance. To avoid being arbitrary, detention had to be carried out in good faith; detention had to be closely connected to the purpose of preventing unauthorised entry of the person; and the place and condition of detention had to be appropriate to the person who might have fled their own country in fear; and the length of detention should not exceed that reasonably required for the purpose pursued; paragraph The detention was not arbitrary because the purpose of detaining out of some asylum applicants in the year, was to obtain speedy decisions for those in the fast track and those in the increasing queue behind them. Their detention was necessary to achieve the objective of holding 150 interviews a day-which required the avoidance of even small delays; cases were selected as suitable for fast-tracking. This was a policy undertaken in good faith, and as the aim of the detention was to process the claim more quickly and efficiently, the detention was closely connected to the purpose of preventing unauthorised entry. The place and conditions of detention were specifically adapted for asylum seekers: various facilities for recreation, religious observance, medical care and legal assistance were provided; detention was free from arbitrariness. The seven day period of detention before release, after refusal of the asylum claim by the SSHD, did not exceed that which was reasonably required for the purpose pursued. The Court concluded in paragraph 80 that: given the difficult administrative problems with which the United Kingdom was confronted during the period in question, with an escalating flow of huge numbers of asylum-seekers, it was not incompatible with Art.5(1)(f) of the convention to detain the applicant for seven days in suitable conditions to enable his claim to asylum to be processed speedily. Moreover, regard must be had to the fact that the provision of a more efficient system of determining large numbers of asylum claims rendered unnecessary recourse to a broader and more extensive use of detention powers. 32. The question whether the processes at Oakington were inherently unfair arose in R(L and another) v SSHD [2003] EWCA Civ 25, [2003] 1 WLR Lord Phillips gave the judgment of the Court. The Court of Appeal held that there was no reason why the Oakington fast track procedure should not afford

12 adequate opportunity for asylum claimants to demonstrate that they had a case, or in the main group of cases with which that case was concerned, an arguable case. But it also said, in response to the contention that there were certain categories of case, for example where medical evidence was required, which could not be fairly dealt with in the compressed timetable there, for which it would expect the inappropriateness of the fast track to be recognised. But no reasonable procedure could cater for the position where a traumatised person did not reveal the trauma when opportunity to do so was provided. Country experts were often not driven by the circumstances of any particular case. Much of what the Court of Appeal said was directed to certified cases, with which this case is not concerned. 33. The DFT was again considered in R(Refugee Legal Centre) v SSHD [2004] EWCA Civ After the Court of Appeal decision in Saadi in 2003, the SSHD set up a pilot fast track scheme at Harmondsworth Removal Centre near Heathrow. Its lawfulness was challenged. The process was limited to single males from countries where there was in general thought to be no serious risk of persecution. There was a screening process to determine suitability for this track. A solicitor would usually have the morning in which to interview the client, and the substantive interview would take place that afternoon, but not on the day of arrival. The interviews were conducted by the more experienced officials. The decision would be taken the day after the interview; there were two days in which to exercise the right to appeal, with an appeal hearing the next day, and a Tribunal decision within two or three days, and ten days for statutory review. Of the 1438 cases on this fast track, 151 were removed before decision, almost all the rest were refused asylum, 270 were removed from the fast track pending appeal; 19 out of 995 appeals were allowed by Adjudicators, 1 out of 16 appeals to the Immigration Appeals Tribunal succeeded. 34. The RLC s concern was that the system was inherently unfair and therefore unlawful because the decision-making process was so compressed, compressed into 3 days. Sedley LJ gave the judgment of the Court. The first question for the Court of Appeal was to identify the test for whether a system was so unfair as to be unlawful. This was: did the system provide a fair opportunity to asylum seekers to put their case? To put it another way: was there an unacceptable risk of claims being processed unfairly? The risk of injustice had to be reduced to an acceptable minimum; an unacceptable risk had to go beyond the risk of aberrant decisions and instead inhere in the system itself; the prospect that a decision could be corrected by judicial review did not necessarily answer the point; paragraphs 6 and Sedley LJ continued in paragraph 8: The choice of an acceptable system is in the first instance a matter for the executive, and in making its choice it is entitled to take into account the perceived political and other imperatives for a speedy turn-round of asylum applications. But it is not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency; and whether it has done so is a question of law for the

13 courts.we adopt Professor Craig's summary of the three factors which the court will weigh: the individual interest at issue, the benefits to be derived from added procedural safeguards, and the costs to the administration of compliance. But it is necessary to recognise that these are not factors of equal weight. As Bingham LJ said in Thirukumar [1989] Imm AR 402,414, asylum decisions are of such moment that only the highest standards of fairness will suffice; and as Lord Woolf CJ stressed in R v Home Secretary, ex parte Fayed [1998] 1 WLR 763,777, administrative convenience cannot justify unfairness. In other words, there has to be in asylum procedures, as in many other procedures, an irreducible minimum of due process. 36. The Court rejected the contention that unfairness in the initial decision-making process was capable of correction through the appeal process, since the applicant was entitled to a fair decision at both levels; and: Secondly, and perhaps more important, the consequences of the risk which most concerns the RLC may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it contains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable. 37. The Court, applying its test, concluded that there was no unacceptable risk of unfairness to asylum seekers, that is, there was no unacceptable risk, inherent in the way the system was operated, of a claim being processed unfairly. That is a high threshold. But that was qualified in a respect important for this case: 23. But provided that it is operated in a way that recognises the variety of circumstances in which fairness will require an enlargement of the standard timetable - that is to say lawfully operated - the Harmondsworth system itself is not inherently unfair. A written flexibility policy to which officials and representatives alike can work will afford a necessary assurance that the three-day timetable is in truth a guide and not a straitjacket. 24. Here, what has been identified is a gateway risk of injustice, in the nature of things not case-specific but caused by potential rigidity in a system which requires genuine flexibility in its timetable. 25. We have recognised this risk and indicated what in our view needs to be done to obviate it. But, like Collins J, we

14 do not consider that the system itself is inherently unfair and therefore unlawful. On the contrary, so long as it operates flexibly - as the Home Office accepts it should the system can operate without an unacceptable risk of unfairness. Although therefore a material part of the RLC's concern needs to be addressed, Collins J was right to refuse relief, and the appeal consequently fails. 38. The concern was the extent to which flexibility was applied in practice to the tight timetables, where individual cases required more time or removal from the fast track. 39. There are other authorities on the correct approach to the lawfulness of a policy. A policy, applied according to its terms, must not expose individuals to a significant or serious risk of a breach of Article 3, R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148, Lord Bingham at paragraph 29, and Lord Hope at paragraphs 80-81, but that issue does not arise in this case. I have also considered R (Medical Justice) v SSHD [2011] EWCA Civ 1710 and R(Tabbakh) v Staffordshire and West Midlands Probation Trust and Secretary of state for Justice, [2014] EWCA Civ 827, which affirm those principles. There is no justification in these decisions for avoiding a smaller degree of risk, let alone all risk where it is arbitrariness in Article 5 which is the error to be avoided. Arbitrariness is not in a category of error all of its own. The current policy 40. The most recent variation or clarification of this policy is dated 11 June 2013, and entitled Detained Fast Track Processes. It was clarified, because, among other reasons, of European Commission concern, in its examination of member states asylum arrangements, about a general presumption in the policy that all cases were suitable for fast tracking. The policy takes the form of an instruction to referring and screening officers, National Asylum Intake Unit, NAIU, officers and DFT unit officers. Its stated purpose is to lay out policy which must be strictly applied to determine case suitability for entry to, and continued management within the DFT. It also lays out the screening processes and operational considerations which may prevent a case entering the DFT even though otherwise suitable. 41. Section 2.1 sets out the DFT policy on the suitability of cases for the DFT: An applicant may enter into or remain in DFT/DNSA processes only if there is a power in immigration law to detain, and only if on consideration of the known facts relating to the applicant and their case obtained at asylum screening (and, where relevant, subsequently), it appears that a quick decision is possible, and none of the Detained Fast Track Suitability Exclusion Criteria apply. DFT/DNSA suitability has no requirements as to nationality or country of origin and no other bases of detention policy

15 need apply (see chapter 55 of Enforcement Instructions and Guidance (EIG). There is no requirement that an application be late and opportunistic; but where it is known or suspected that it may be, particular consideration should be given to entering the applicant into DFT/DNSA (See Section 2.2 below). 42. It states that suitability must be considered not just at the time of entry into the DFT but at all stages of ongoing case management, and changes in circumstances relevant to the reason for detention. 43. The basis for the assessment of whether a quick decision is possible is set out in section 2.2: 2.2 Quick Decisions The assessment of whether a quick decision is likely in a case must be made based on the facts raised in each individual case. Cases where a quick decision may be possible may include (but are not limited to): Where it appears likely that no further enquiries (by the Home Office or the applicant) are necessary in order to obtain clarification, complex legal advice or corroborative evidence, which is material to the consideration of the claim or where it appears likely that any such enquiries can be concluded to allow a decision to take place within normal indicative timescales; Where it appears likely that it will be possible to fully and properly consider the claim within normal indicative timescales; Where it appears likely that no translations are required in respect of documents presented by an applicant, which are material to the consideration of the claim; or where it appears likely that the necessary translations can be obtained to allow a decision to take place within normal indicative timescales; Where the case is one likely to be certified as clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act Other factors of particular relevance are whether the application for asylum was made merely to delay or frustrate enforcement of a removal decision, or if the

16 applicant had failed without reasonable cause to take the opportunity to make the application earlier, or if the applicant s entry to the UK had been unlawful or if the stay had become unlawful and there was no good reason for an earlier application not to have been made. 45. The indicative timescales for DFT, non-dnsa cases, would usually be quicker than days from entry to SSHD decision, but timescales were not rigid and must be varied when fairness requires it; section This continues: Cases receiving uncertified refusal decisions in the DFT process are also, in the case of any appeal, subject to a fast-track appeals process which is governed [by the 2005 Fast-Track Procedure Rules]. 47. The suitability exclusion criteria are set out in section 2.3 UK Border Agency, UKBA, policy: is that certain individuals are unlikely to be suitable for entry or continued management in the DFT. These persons are: Women who are 24 or more weeks pregnant; Family cases ; [Children whose date of birth is not disputed]; Those with a disability which cannot be adequately managed within a detained environment...; Those with a physical or mental condition which cannot be adequately treated or managed within a detained environment; Those who clearly lack the mental capacity or coherence to sufficiently understand the asylum process and/or cogently present their claim. This consideration will usually be based on medical information, but where medical information is unavailable, officers must apply their judgment as to an individual s apparent capacity; Those for whom there has been a reasonable grounds decision taken (and maintained) by a competent authority stating that the applicant is a potential victim of trafficking or where there has been a conclusive decision taken by a competent authority stating that the applicant is a victim of trafficking; Those in respect of whom there is independent evidence of torture.

17 48. Section 3 sets out the process for referring cases to the DFT. All new asylum applications have to be referred to the National Asylum Intake Unit, NAIU, by screening officers for the NAIU to assess the appropriate process for the case. The screening interview is for the purpose of obtaining key information and for early suitability consideration. The applicant must be fully screened, which includes fingerprinting and Eurodac checks. They must be asked if they have any documents, statements, or other evidence relevant to their claim, and about their family life or other personal circumstances whether, at that instant or in the future. The specific nature of the documents including their language must be ascertained and recorded. Follow-up questions must be asked and documented where relevant to the suitability policy: It is vital to obtain and consider relevant information where it can be reasonably obtained in a screening setting (or, for information not available at that instance, to consider the likelihood of its later submission and its probable materiality. 49. After screening all cases must be referred to the NAIU and if it is considered to be a possible DFT case, the referral must highlight the factors leading to this view with reference to policy and operational considerations, as well as drawing attention to information which may weigh against them. The referring officer if requested must send to the NAIU the screening interview form and other documents of potential relevance to suitability. The detention of DFT entrants must follow standard detention procedures. The form IS91R must be completed in every case and the relevant box must clearly identify that the reason for detention is for DFT processing in addition to any other reasons for detention which clearly apply. 50. The task of NAIU, as set out in section 4, is to consider the suitability of every referral against policy and operational considerations based on all information and evidence held on file and otherwise known about the applicant and his claim. It must seek advice from senior DFT caseworkers in any case where there is doubt. 51. If a case is accepted into the DFT processes, the NAIU must confirm the reasons for suitability and if no factors were raised relevant to the exclusion criteria, it could simply say that there was no information weighing against a quick decision. Where there is information relevant to the speed of decision or to the exclusion criteria, each point will need to be addressed in sufficient detail to show NAIU s meaningful consideration of the key facts at the time of referral. The note will need to state that a quick decision can reasonably be expected. 52. Section 5 deals with the sort of operational considerations which may preclude a suitable case entering the DFT. These include insufficient detention capacity. It is also relevant to give forethought to the means by which removal may be effected, should the asylum application fail. This will mean giving consideration to the timeliness of obtaining travel documents in the particular case. Cases where obtaining travel documentation is a lengthy process would generally be operationally suitable for the DFT/DNSA process only if there is another factor relevant to the case with higher operational priority. Operational experience may also mean that certain types of case at a particular time may be judged unsuitable for the process. Certain detainee profiles may

18 be inappropriate for one or more immigration removal centre at a particular time in order to maintain security and calmness in the detention estate. An individual may be served with an immigration decision which carries an in-country right of appeal before an asylum claim is made. If that happens, the asylum application may be considered within DFT. 53. I need to say a little about the extension of the DFT to encompass the appeal process. The genesis of this was the undoubtedly lawful fast-track appeals process piloted in 2003, and then established in There is no challenge to the logic of a fast track appeals process: it is obvious that the purpose of a fast track initial decision-making process would be undermined by a conventional speed appellate process. But there has been persistent uncertainty over whether the powers to detain the while were the general detention powers, such as to prevent absconding, or the same quick processing purpose as had lain behind the operation of the DFT up to the stage of the SSHD s decision, as the DFT was understood to operate in Saadi. 54. When the fast-track appeal process was first piloted with new Procedure Rules, the Minister for Citizenship and Immigration, Ms Hughes, told the House of Commons in March 2003, in a Written Statement, that these rules would enable fast-track decisions and appeals to be disposed of, to the point of removal if unsuccessful, within four weeks of the applicant s arrival. This would be based on the co-location of key elements of the asylum process. These were, I surmise, the co-location of detention and appeal hearing: Detention of asylum seekers for a short period of time for the purposes of making a speedy decision on their claim was upheld last October as lawful by the House of Lords. If the claim is refused or for any reason cannot be dealt with in accordance with the pilot timescales, a decision about further detention will be made in accordance with existing detention criteria. Detention in this category of cases will therefore normally be where it has become apparent that the person would be likely to fail to keep in contact with the Immigration Service or to effect removal. 55. On the face of it, existing detention criteria could mean those of the fast track or those applicable outside the fast track. The latter is the more obvious and natural meaning, in my judgment. Neither a Press Release which misstates Hansard, nor what it says Baroness Scotland said as the Minister in the House of Lords, nor the Notes to Editors shed any greater light on this aspect of Government policy, at that time. 56. In September 2004, Mr Browne, by then the relevant Minister, and Baroness Scotland returned to the issue in similar written statements to each House. I am not here concerned with what the statements said about revisions to the DFT more generally, but after dealing with how quickly SSHD decisions were being made, and stating that detention could continue after the day timescale unless that made the length of detention unreasonable, they stated:

19 Continued detention may also be merited in some cases irrespective of decision time scale, where our general detention criteria apply. We may also detain claimants after we have made and served a decision in accordance with our general detention criteria. 57. That in my judgment leaves no room for doubt, and is consistent with what I judge the previous statement to have meant. The DFT detention criteria did not apply to the appeal stage; the general detention criteria did. 58. I am not surprised, in those circumstances, that ILPA s 2008 Guide to Best Practice in the DFT Process advised that the only criteria for detention under the Fast Track Appeals process were the general detention criteria, not the specific criteria for the DFT applied to Fast Track cases, that is those with a good prospect of a quick appeal decision. The Guide referred to the Operational Enforcement Manual 2008, section 38.4, which dealt with detention in the fast track, and which did not disabuse the reader who relied on ILPA s view. The general criteria, in 38.3, were introduced with the heading Factors influencing a decision to detain (excluding pre-decision fast track cases). This suggested that the general detention criteria applied to all other cases including postdecision fast track cases; indeed, the section on the DFT did not say that the relevant decision was the appeal decision if there were an appeal, nor, in my view, is that the meaning to be gleaned from the words used. Counsel instructed for the Home Office had made the same mistake on two occasions, submitting that the post-sshd decision detention criteria were the general detention criteria, a mistake which officials should have picked up; Mr Simm thought it regrettable that they had not done so. 59. The current policy states in section that if an asylum claim is unsuccessful (a DFT case becoming appeal rights exhausted, or a s94 refusal decision being served), detention may continue under general detention policy. This carries with it the clear implication that until appeal rights are exhausted or a s94 refusal decision is served, it is the DFT detention policy which applies to someone whose application was refused by the SSHD, whose appeal rights were not yet exhausted. This is consistent with the version new in 2008 and thereafter for some years which, after referring to Saadi as permitting the detention of someone for the purpose of deciding his application under accelerated procedures, had said: Once a decision is made however, detention policy requires that removal be imminent. The decision may be regarded as including the time during which an individual has extant appeal rights. This now clearly implies that the SSHD s policy is that the decision on appeal was part of the decision-making process to which the principles governing detention set out in Saadi applied. 60. I am satisfied that the DFT detention policy applies now, and has done so expressly for some years, to the appeal stage of the decision-making process. The policy changed, as I read it, or it may just have been badly expressed in the past. But it is clear now. The application of DFT detention criteria to the appeal stage is also lawful in my view.